Fri | Dec 9, 2016

Attorney general out of order

Published:Sunday | February 15, 2015 | 12:00 AM

Gordon Robinson, Columnist

Jamaica's attorney general has joined the teeming hundreds of lawyers, including me, with an opinion on the effect of the first instance Supreme Court decision in Williams v Holness.

That's really nice and helpful of him. But why? Section 79 of the Constitution creates a constitutional officer named the attorney general, whose job description is:

"79(1) There shall be an attorney general who shall be the principal legal adviser to the Government of Jamaica."

In case there is a single Jamaican out there still confused by our backward, complicated Westminster system of governance, let me assure you "the Government of Jamaica" is not found in Parliament but consists of the Cabinet (as policymaker) and civil service (as administrator). Chapter VI of the Constitution makes it clear (after brushing aside ceremonial references to Her Majesty) that executive authority is vested in the Cabinet that "shall be the principal instrument of policy and shall be charged with the general direction and control of the Government of Jamaica and shall be collectively responsible, therefore, to Parliament [Section 69(2)]".

It's beyond doubt that the Houses of Parliament aren't part of the 'Government of Jamaica' and the entrenched principle of separation of powers ensures that, regardless of personality, the function of Parliament, which includes the Senate (Section 34) and is created and governed by a separate Chapter V of the Constitution, is to "make laws for the peace, order and good government of Jamaica" [Section 48(1)].

It's no function of the attorney general to provide gratuitous advice to the Senate or to the president of the Senate. I suppose if the president asks him for advice, it could be provided, but the attorney general must always bear in mind the strict separation that ought to be maintained between the executive and the legislature. This could be compromised if the Government's legal adviser is seen to be also advising the legislature.

What's certain is that it's no function of the attorney general to advise the general public by way of press conference or to get involved in a lawsuit between two opposition functionaries, each of whom have their own team of legal advisers and neither of whom has asked for his advice. Section 44 of the Constitution and Section 3 of the Parliament Membership Questions Act provides unambiguously that ONLY the Supreme Court can pronounce with legal effect on the question as to whether senators have been validly appointed or vacated their seats or should cease to act as senators. Why's the attorney general attempting to pronounce on these same issues?

BAFFLING

Why's it being made to appear the PNP Government has a vested interest in the specific identity of certain JLP senators? Is there a connection with any anticipated bills to be passed in the Lower House by a two-thirds majority receiving 'independent' consideration in the Senate?

The opinion itself, based not on quoted authority but on a barrage of assumptions and inferences, is baffling. The attorney general begins by expressing the reason for his intervention as such:

"Consequent on the decision of the court in Arthur Williams v Andrew Holness, the following issues have been raised."

That isn't any part of his constitutional remit. Many court decisions raise many issues. So what? He doesn't claim he was asked by the Senate president for advice or that he's advising the Senate president or anybody in Government. He's simply making a media statement.

Without citing any authority beyond the court's first instance judgment, he delivers himself of the following:

"The purported resignation of Mr Williams and, by extension, that of Dr Tufton has been adjudicated to be unconstitutional, unlawful, against the public interest and accordingly null and void. I am of the opinion that Mr Williams and Dr Tufton still are members of the Senate and are entitled to take their seats."

Why? On what legal
authority? The attorney general concedes (while discussing another
issue) that: "The court did not address the purported
appointments of Mr Ruel Reid or Dr Nigel Clarke to the Senate ...
,"
yet goes on to qualify their appointments as follows:
"which were made on the unfounded basis that senators Arthur
Williams and Christopher Tufton had resigned and left two seats
vacant."
How does he know the basis of their appointments? Why
hasn't he considered that the appointments may have been made only
AFTER and acting on the explicit authority of a Supreme Court decision
expressly refusing to block the appointments?

The
attorney general presses on regardless: "The Constitution
allows for only 21 senators and not 23 ... ,"
thereafter
arrogating to himself, despite the provisions of Section 44 of the
Constitution and Section 3 of the Parliament Membership Questions Act
and, again without any legal authority quoted, the right to pronounce on
the specific identity of the eight opposition senators. He concludes,
with astonishing facility: "In this case, the court did not go
as far as to declare that Senator Williams and Senator Tufton are still
the holders of their seats in the Senate, but the following inferences
may be made from the judgment. If the pre-signed and undated letters of
resignation and the letters of authorisation are null and void, then
Senator Williams and Senator Tufton did not resign. In those
circumstances, they remain members of the
Senate."

It is trite law that no citizen can
be forced to take any step pursuant to "inferences" from any judgment.
Even a judgment in my favour against John Brown in the sum of $1 million
does not order John, by inference or otherwise, to pay a penny. Another
trite matter of law that I'd expect Jamaica's attorney general to know
is that nobody who isn't a party to litigation can be ordered to do
anything [e.g., Reid/Clarke] or have any of his rights declared [e.g.,
Chris Tufton].

I find it astonishing that an
attorney-at-law is permitted, without his client's express permission,
to disclose matters arising from the confidential arrangement to the
extent of using same to found a claim against his own client, but the
good news is that the decision recently handed down declares the legal
position as between Andrew Holness and Arthur Williams only. It doesn't
affect anybody else. It doesn't give Chris Tufton any right to a Senate
seat, nor does it disqualify senators Reid or
Clarke.

Conclusion

At the end of a long spiel based on conjecture
only, the attorney general 'concluded' as
follows:

"I am
of the opinion that in light of the court's declaration ... , there were
no vacancies in the Senate. It would follow that having regard to the
mandate of the Constitution, the appointment of two additional senators
would be unconstitutional.

"In the
circumstances, either the affected parties should agree or the matter
should be referred to the Supreme Court pursuant to Section 44 of the
Constitution of Jamaica."

The off-the-cuff
final paragraph afterthought is just about the only three lines with
which I agree. But it comes after 12 pages of condemnation by inference
and is itself a massive non sequitur from what
immediately precedes it. If " ... the appointment of two
additional senators would be unconstitutional"
, then why
bother to "agree" or return to a court that the attorney general insists
has already pronounced authoritatively?

In the
decision itself, much was made of what was NOT in the Constitution but
appeared in the 1959 Constitution. The 1962 Constitution made specific
reference to the Interpretation Act, hence it was wholly unnecessary and
might have caused confusion, to include a duplicate right of dismissal.
But, if what is NOT there is going to be used to mean anything what
about the fact that a request for a declaration that he's still a
senator was NOT included in Mr Williams' claim? Is that not a specific
concession that he could no longer sit in the
Senate?

The PNP's anxiety to embarrass the Opposition,
as exhibited by this unnecessary and unusual interference by the
attorney general, is short-sighted. This is NOT a partisan problem. For
the PNP's sake, let's hope that the JLP doesn't one day hold a
two-thirds majority in the Lower House and then seek to prevent a PNP
opposition leader from acting to protect Jamaica from irrational
constitutional change by inserting JLP choices as PNP opposition
senators.

Be careful what you ask
for.

Peace and love.

Gordon
Robinson is an attorney-at-law. Email feedback to
columns@gleanerjm.com.